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During deliberations in a motorcycle accident trial, the jury asks to view and discuss some exhibits in the jury room: a series of admitted photos depicting part of the accident scene. May the judge allow the jury to take the photos into the jury room? As with most things, it depends.

This question used to be governed by the “well-settled” rule in Nunnery v. Baucom, 135 N.C. App. 556 (1999), that “trial exhibits introduced into evidence may not be present in the jury room during deliberations unless both parties consent.” For civil cases, the “consent required” rule was replaced in October 2007 by G.S. 1-181.2, which governs both open-court and jury room evidence review. Although this statute is now a few years old, it is perhaps not as widely-known as it could be. For a recent case in point, see Redd v. Wilcohess, LLC, 745 S.E.2d 10 (N.C. App. 2013). So, here’s a review of the standards established by G.S. 1-181.2.

In Lacey v. Kirk, (COA14-688; Dec. 31, 2014), the Court of Appeals considered whether a judge’s statements in the jury’s presence entitled defendant to a new trial. Defendant took issue with several things the judge said while defendant testified, including instructing her to “tell the truth” when she was evasive; that she had “a problem” if she couldn’t prove a point without hearsay; and to “answer the question first” before explaining. The court held that—considered cumulatively and in context—these comments were an attempt to aid the flow of evidence and were not prejudicial. Also, the judge’s instructions to counsel to move faster and avoid repetition “exhibited a certain degree of impatience” but were “meted out” to both sides and were appropriate to preserve court time. Lacey is a fresh example our courts’ basic analysis of judge statements in front of a jury: Neutrality is paramount, but context and cumulative impact determine whether questionable remarks taint a party’s case.